In Churchill’s final Reply in Support of the motion, attorney David Lane raised for the first time the assertion that the stipulation referred to by CU in its original Motion to Dismiss was only a draft stipulation, and not the document filed with the Court.  That assertion allowed CU to reveal in its reply that in fact there were two stipulations signed by the parties.  The “Joint Stipulation for Dismissal of Claims and Withdrawal of Motions to Dismiss” was filed with the court December 20, 2007 and says nothing about waivers of liability. 

The second, a Joint Stipulation that includes a “Limited Waiver of Eleventh Amendment Immunity,” is the document referred to in CU’s motion to dismiss.  It was not initially filed with the court but was, by agreement of the parties, held confidential unless “necessary to resolve a dispute between them as to its validity or construction.”  In other words, the stipulation that provides the basis of the court’s decision to dismiss the claim and nullify the jury’s ruling was a private contractual agreement between the parties.  It is this agreement that allowed Judge Naves to dimsiss the claim on the basis of quasi-judicial immunity which, without the stipulation, would not have been available to CU as an entity.        

With the Rule 59 Motion now denied, the case can be presented for appeal.

Rule 59 allows for post-trial motions on (1) a new trial of all or part of the issues; (2) judgment notwithstanding the verdict [this was the section under which CU filed its successful motion]; (3) amendment of findings; or (4) amendment of judgment. [section applicable to Churchill’s motion].  Filing a motion under Rule 59(4) is a strategic move; it is not procedurally required for appeal.  In essence the losing party is asking the judge to reconsider his/her decision.  Such motions are not often successful.  Churchill has also filed a timely notice of intent to appeal, seeking to preserve that right in the event Judge Naves does not change his mind.

Churchill’s Main Arguments

• The court misinterpreted the stipulation between the parties.  Churchill did not agree to dismiss any official capacity claims, which are never subject to the quasi-judicial immunity defense, and therefore still apply and cannot be dismissed using the quasi-judicial immunity argument.
• Once the motion to dismiss was granted, the court should not have gone on to address reinstatement and misstated the law when it was addressed. 
• The legal standard in a First Amendment retaliation case is reinstatement unless the employer-employee relationship has been irreparably damaged.  The court ignored that standard as well as Churchill’s evidence presented at trial that he bore no animosity toward CU and instead relied on Churchill’s quotes in newspaper articles. 

CU’s Main Arguments in Response

• The standard of review under Rule 59 is that there be specific errors in the form of the decision rather than simply not liking the decision. Churchill’s motion does not address any specific errors, and is, rather, “a brief in opposition to the judge’s opinion in rendering final judgment.”  The appropriate venue for such opposition is in appeal.
• Churchill “disregards the plain language of the stipulation.”  The stipulation states “Professor Churchill shall dismiss all official capacity and individual capacity claims currently pled against the individual Regents of the University of Colorado with prejudice” but “will permit the same recovery [against the University] that might otherwise be had against any of its officials or employees acting in their official or individual capacities.”  In other words, CU gets to act not like an institution but like and individual in exchange for not pursuing claims against the individual Regents.
• Acting like an individual, CU could be sued either (or both) under an “individual capacity” claim or an “official capacity” claim.  An official capacity claim requires proof that the official was doing something unconstitutional as a result of the (probably unofficial) policy or custom of the institution he/she worked for, and is not subject to the quasi-judicial immunity defense.  An individual capacity claim has a lower standard of proof—that the individual “caused the deprivation of a federal right”—but is subject to the defense of quasi-judicial immunity.
• Because Churchill never presented or argued an official capacity claim against CU, it cannot now argue that legal theory.  The only claim presented and argued was the individual capacity claim against CU for which CU justifiably invoked the quasi-judicial immunity defense (as agreed in the stipulation), and which the court ruled on.
• The jury’s award of just $1.00 proved that while the jury found that Churchill’s rights had been violated, the violation caused no damage.  “A Court should not grant prospective equitable relief in the absence of actual damages, rather than a technical violation that the jury has declined to compensate through an award of economic or non-economic damages.”

Mr. Mohamedbhai submitted two Exhibits with the Motion: one a chart showing how often Judge Naves utilized or quoted from CU’s motion to dismiss, and the other an affidavit from juror Bethany Newill describing the jury process in reaching its verdict and claiming that Judge Naves misinterpreted the meaning of the verdict.  Lawyers might well smile at the accusation that evidence of an attorney’s brief being used verbatim in a judge’s written decision is somehow improper; indeed, law school students are taught that such use is to be considered proof of a well-written brief—a high honor to be strived for.

Regarding the use of a juror’s affidavit, CU points out that such use is prohibited under Colo. Rules of Evidence 606(b): “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith…A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.”

In the end, pursuing an appeal on this claim should come down to whether or not the Regents (and therefore CU, standing in the Regents’ shoes) were free enough from political influence to qualify for quasi-judicial immunity, which is a large and imprecise legal issue.  The issue of whether the stipulation meant this or that is primarily a contract interpretation matter, with contract law favoring a plain meaning interpretation of what is written, which seems to favor CU’s arguments.

A final interesting procedural issue is whether the Motion to Amend Judgment must be ruled upon before the Appeal can be considered to be timely filed, as an appeal filing requires that final judgment be issued in lower court in all matters except attorney’s fees.  Judge Naves retains jurisdiction over the Rule 59 motion under Colorado Appellate Rule 4.  No hearing has been set to consider this Motion. 

Documents filed in this case are available at the DU Corporate Governance site.

Judge Naves utterly rejected both these interpretations of the jury’s verdict. All the jury found is that “the University did not prove that a majority of the Regents would have voted to dismiss Professor Churchill in the absence of his political speech. That is a very different question than whether Professor Churchill engaged in research misconduct” for which there was “no such finding by the jury” and “remains the province of the University’s faculty.”

Regarding Churchill’s assertion that the jury award of only one dollar was victory in giving him exactly what he wanted, Judge Naves wrote: “…it was clear from the nature of the testimony that Professor Churchill (and other witnesses) provided, as well as the argument of his counsel and his pre-trial pleadings, that Professor Churchill was seeking compensation for lost wages, loss of reputation, and emotional distress.” The Order recites the sequence of questions the jury asked the Judge about what to do if they found in favor of Churchill but wanted to award him no damages. Judge Naves instructed the jury to nonetheless award the nominal damage of one dollar, which the jury did less than an hour later. Based on this exchange, Judge Naves found as a matter of law that the jury determined Churchill did not incur any actual damages, not that the jury was “giving Churchill what he asked for.” In other words, Judge Naves has now ruled on what the jury’s verdict meant, so the debate is over (for now).

Back in 2007, O’Rourke saw ahead to the possibility of needing to use the quasi-judicial immunity defense. “I know that I’m never going to be able to beat David in terms of courtroom drama – he’s very good at what he does, so I’ve got to try to create some legal openings somewhere else in the case,” O’Rourke replied when I asked him about his strategy.

The parties agreed to allow CU to substitute itself as an entity for the individual Regents who were sued, with CU agreeing to not invoke 11^th Amendment sovereign immunity as a defense. Since quasi-judicial immunity generally only applies to individuals, Mr. Lane and associates seemed to not consider it a threat once the 11^th Amendment immunity was waived. But hidden in plain sight in the pre-trial Stipulation were the magic words: “reserving to the University the ability to present the same defenses that would have been applicable to any of its officials or employees acting in their official or individual capacities.” In other words, CU as an entity could now assert quasi-judicial immunity if it applied.

The sequence of presenting briefs to the Court is for the initiating party to file a Motion, to which the other party will file a Response addressing the arguments presented in the Motion, to which the initiating party will file a Reply as the final brief presented to the court. Part of the Clever Trap was to use this filing sequence to spring the trap.

Mr. O’Rourke’s initial Motion did not mention the Stipulation agreement to explain why quasi-judicial immunity applied in this case. If it had, Lane would have been alerted at that point and used his Response brief to try to counter the assertion. Mr. Lane’s Response to the Motion only noted, rightly, that CU had waived its 11^th Amendment immunity, and that quasi-judicial immunity applied to individuals, not to entities such as CU. No reference to the Stipulation, which infers that Churchill’s attorneys did not even then see the trap. It was not revealed until Mr. O’Rourke’s Reply when he quoted the phrase in the Stipulation agreement that gave the reason the usual limitation to individuals did not apply in this case. That would have been the last word in briefing arguments (and one can only think that Pat O’Rourke planned it that way) except that Judge Naves ordered additional briefs be submitted on the issue. The briefs did not offer any new arguments, but probably added protection to the ruling being overturned.

As we know now, in the end, the Clever Trap worked. While the details are probably only interesting to we geeky lawyer types, the strategy is a great lesson for budding litigators who can never hope to achieve David Lane’s courtroom flamboyance. There is always plain old thinking and planning ahead—far ahead.

When I read O’Rourke’s Reply, I sent him a personal question: “Do you play chess? And if so, do you always win?” He replied, “I do play chess, but don’t always win.”

News agencies in Colorado and elsewhere have reported on the bottom line of Judge Naves’ decision, couched as “no reinstatement.” In fact, there are three key elements to the Order and several interesting nuances.

1) In deciding to terminate Churchill’s employment, the Regents were acting in a quasi-judicial capacity that provides immunity from any lawsuits that arise from unhappy recipients of their adjudicative responsibilities. Therefore the jury’s verdict is vacated—void, gone, made as if it never happened.

2) And even if quasi-judicial immunity were not applicable, Churchill should not be reinstated because a) the jury did not find that he incurred any damage from the First Amendment violation, so the court cannot now apply the equitable remedy to non-existent damage; and b) Churchill’s past behavior—in statements to the press and in retaliatory complaints filed against CU faculty investigating him—indicate that his animosity toward CU will inhibit CU’s effective operation as a university.

3) Nor is Churchill due any front pay because he failed to mitigate his loss of job damage (i.e. look for a new job or accept any of the several job offers he claimed he received).

One of the questions that must come to a thinking person’s mind is why would Judge Naves allow such an extensive trial to happen only to nullify it on what is essentially a legal technicality? The answer is that CU attorney Patrick O’Rourke did not raise this defense until after the trial on the basis that the specific elements would have to be proven in a trial-like setting anyway. If the jury had ruled for CU, there would be no reason to have raised the defense; since the jury ruled for Churchill on the First Amendment claim, O’Rourke could raise it as a post-trial motion.

(For the non-legal readers, there are several points in the process of a trial when either party can ask the judge to rule as a matter of law, based on what has been presented to that point. Some are after the initial claims are filed but before evidence is presented, some are after evidence is presented, and some are after a jury trial has been held and a verdict reached. Judgment as a Matter of Law is the later, and allows a judge to overturn a jury decision that clearly ignores the law.  That is not the case here, but it also allows post-decree motions to be considered.)

The elements that must be proved to establish that quasi-judicial immunity exists come from Gressley v. Deutsch, 890 F.Supp. 1474, 1480 (D.Wyo. 1994):

“(a) the officials’ functions must be similar to those involved in the judicial process; (b) the official’s actions must be likely to result in lawsuits by disappointed parties; and (c) there must be sufficient safeguards in the regulatory framework to control unconstitutional conduct.”

Pat O’Rourke made sure that there was ample testimony during trial regarding elements (a) and (c) with references to the extensive investigatory and review procedures and to the fact that Churchill had access to counsel at all times and opportunity to question witnesses and reply to allegations. Judge Naves details these evidences of quasi-judicial function in the Order in support of his findings. Element (b) is pretty well self-evident. There is ample case law for Judge Naves to follow, including a Colorado Supreme Court case and a 10^th Circuit case, giving quasi-judicial immunity to university regents when they act to adjudicate a case of faculty misconduct.

Judge Naves notes, in a footnote, that the order vacating the jury decision “may” make the question of reinstatement moot. Nevertheless, in the time-honored legal custom of hedging one’s bets, he issued a ruling on reinstatement and front pay.

Reinstatement is an issue that required Judge Naves to cut the Gordian knot of speculation around what could or will happen if Churchill is or isn’t reinstated and make a common sense decision. In the end, Judge Naves noted that since an employer’s hostility to an employee should not deny reinstatement, his decision “rel[ied] upon Professor Churchill’s statements demonstrating his hostility to the University.” And that while Churchill could have contested the P&T Committee’s findings of academic misconduct, Churchill chose to file retaliatory complaints against members of the committee. In other words, Churchill’s actions and out of court comments denigrating CU and CU personnel and staff convinced Judge Naves that “There is only a miniscule possibility that his return to the University will be amicable and productive.”

Judge Naves also gave credence to the notion that reinstatement would “effectively negate the principle of autonomous faculty control over standards of performance and membership.” Both Churchill and the incoming Chair of Ethnic Studies rejected the P&T Committee’s “judgment defining appropriate standards of scholarship or its unanimous conclusions that Professor Churchill had repeatedly violated them.” Judge Naves: “I conclude that reinstating Professor Churchill would entangle the judiciary excessively in matters that are more appropriate for academic professionals.”

The issue of front pay was quickly dispatched after Churchill testified that he had not pursued employment and has even “received a few job offers.” He therefore has not fulfilled his duty to mitigate his job loss and front pay is not appropriate in such an instance.

The Order is exhaustively thorough, as would be expected from a judge who anticipates the judgment will be appealed. The rationale for each decision is clear, logical and supported with case law and evidence. As Mr. Lane himself has noted, it will be a difficult job to have it overturned.

Could it be that Judge Naves was shielding his ruling on the remedy by holding off ruling on quasi-judicial immunity until the trial was over? Maybe he was actually being crafty. If he had ruled on a motion for summary judgment earlier and stopped the trial at that point, then that ruling would have been subject to immediate appeal. Had he then been reversed, the trial itself would start at a much later time, leaving everything in limbo and perhaps taking Naves out of case on remand. This way, he accomplished three things: (1) expedited resolution of the issues, arguably important for the public interest; (2) exercised his own judicial discretion (or perhaps activism) to render a remedy he thought just, even if he is reversed on the severable immunity issue and (3) kept himself in the case, rather than risk it going to some other judge on remand.

In effect, Judge Naves has, unless reversed on appeal, sanitized CU of the taint of the jury’s decision that CU terminated him not for research misconduct, but for expressing his first amendment rights in violation of the Constitution. Thus, not only is Churchill not entitled to the $1 jury award and the vindication the award represented, but his attorneys cannot seek reimbursement of their attorney fees conjectured to be over $1,000,000 since Churchill did not prevail in his Section 1983 first amendment claim. Most of this cost would never have been incurred by Churchill and his attorneys (or, for that matter, the jury’s time in sitting through a month long trial) had the issue of quasi-judicial immunity been determined before trial by Judge Naves through a motion for summary judgment that as a matter of law CU would prevail.  

What is remarkable about the judge’s decision is that it adopted almost every argument proffered by CU’s legal briefs. Reading today’s trial decision felt like I was re-reading the CU briefs. For example, by not awarding even front pay in lieu of reinstatement, Judge Naves effectively blocked an award of attorney fees to Churchill on the basis that the $1 award represents a Pyhrric victory invalidating the award of attoreny fees under existing case law (in the event his quasi-judicial immunity ruling in favor of CU is overturned and the reinstatement and front-pay issues are no longer moot). 

The particular CU argument that stands out on reinstatement that was adopted by the Judge Naves related to the $1 jury award. Judge Naves reasoned: “As a result, I determine that I am bound by the jury’s implicit finding that Professor Churchill has suffered “no actual damages” as a result of the constitutional violation.” Judge Naves then reasoned that reinstatement would be inconsistent with the jury’s decision that no actual damages were awarded. However, the jury specifically was instructed to only focus on damages up to the day the jury makes its decision, while the court would decide the appropriate damages/remedies after the trial. Based upon existing case law, it is questionable that the jury’s $1 award bound Judge Naves on the reinstatement decision and is probably legally irrelevant.  Factually, this is especially true in light of published jury comments after the trial that five of the jury members sought significant damages while one member held out for no damages since Churchill had testified that he was not seeking money—just his job.

In the forthcoming weeks, we will dissect the Judge’s decision on the basis of its legal merits and weigh the likelihood that the decision will be reversed on appeal. However, it is clear today that Judge Naves’ ostensibly one-sided decision will raise the issue on whether he should have recused himself from hearing the case based upon the appearance of a conflict of interest since he is a CU law school alumnus. However, this fact alone does not indicate that Judge Naves harbored any actual bias against Churchill and for CU in violation of due process clause of the Constitution based upon the standard set recently by the U.S. Supreme Court in Caperton v. Massey Coal Company. In this case, the Supreme Court established by a 5 to 4 decision that due process is not violated unless there is a “showing of a serious, objective risk of actual bias.” While this standard was satisfied in the Supreme Court case because the losing party at the trial level contributed $3,000,000 to the judge’s election to the court of appeals and this judge subsequently decided in favor of the losing party, this standard is not satisfied here because Judge Naves’ CU alumnus status does not constitute a “serious, objective risk of actual bias.”

The attorneys stayed true to style. Pat O’Rourke often pounded questions in his precise “list” way: “Isn’t it true that Churchill doesn’t need to be reinstated to publish articles? Isn’t it true that he doesn’t need to be reinstated to publish books? Isn’t it true….” Etc. David Lane used colorful exaggeration (by his own admission) to describe professors as working for bosses who violate the First Amendment. Toward the end of the day, Lane’s exaggerations got to be too much for Judge Naves who sustained all objections to them and caused Lane to say that he didn’t have any more questions because he couldn’t say anything. Judge Naves did not seem amused.

My prediction is that Judge Naves will rule on the law, which is that reinstatement is the preferred remedy unless the offending employer can prove that reinstatement will severely damage the violating employer’s enterprise. The burden of proof is with the First Amendment violator, and CU does not seem to have met that burden. While the witnesses—especially Professor Jessor—spoke passionately about the importance of research integrity to maintain academic standards, this is a pretty esoteric concept.

In the end, CU had only speculation that the sort-of-proved allegations of research misconduct would so damage the University’s reputation as to affect hiring and enrollment. No proof of that Churchill couldn’t be civil to colleagues; no proof of any professor having left the university or not taken a job because she/he couldn’t bear to be in an institution with an academic misbehaver. In short, no proof that Churchill’s presence would be disruptive other than to a few academics with a well-developed sense of moral outrage over an academic principle.  If Judge Naves rules against Churchill, it may simply be because in the absense of a clear message from the jury, he is unwilling to "send a message" to all erswhile First Amendment violators.    

Secondarily, what did the jury’s verdict mean? Did finding for CU mean that there was no academic misconduct? Or did the nominal damage of one dollar mean that there was academic misconduct and it caused his own damage? These are the questions that were batted around the courtroom today.

We spent a full day hearing testimony from Churchill witnesses on why reinstatement should occur, then CU witnesses on why it should not. (CU’s motion for judgment as a matter of law based on quasi-judicial immunity will not be argued as the issue has been fully briefed on both sides and is simply a matter of law.)

Churchill took the morning and CU the afternoon. Churchill presented three witnesses: Emma Perez (by phone), currently chair of the CU Ethnic Studies Department; Tom Mayer, CU Sociology professor for 40 years; Margaret LeCompte, CU sociology professor; David Staub, recent CU graduate with degrees in history and ethnic studies; and Professor Churchill.

The witnesses were not sequestered and made these general points:

n Churchill returning is necessary to the ethnic studies department as he is their noted scholar, he teaches very popular classes that always fill up, and reinstatement will show that professors need not fear speaking their minds.

n The university will not be tainted by the academic misconduct allegations but will rather be enhanced by having someone of Churchill’s stature, especially in ethnic studies. His books have sold more than any other professor’s books.

n Churchill has always had collegial relations with faculty members, and there is no reason to think that attitude will not continue.

n Churchill is an excellent teacher and provokes students to think critically, which is the essence of a good university and much needed.

n Students are so eager to learn from Churchill that they organized having a 3-hour class weekly class in 2007 that he taught without being paid.

n The American Association of University Professors, both nationally and locally, are supporting reinstatement.

n Reason that only 10 professors wrote to Judge Naves urging reinstatement is that only a few tenured professors who clearly supported Churchill were asked to do so, deliberately excluding non-tenured professors who might have their careers jeopardized.

The CU cross-examination made or tried to make these points:

n Perez’s unequivocal support of Churchill means that she will not be able to do her job as department chair and objectively review his work.

n While 200 professors took out an ad supporting Churchill when this issue started years ago, only 10 signed a letter to Judge Naves urging reinstatement.

n No one at CU has retaliated against any of Churchill’s supporters.

n While you may not agree with their conclusions, the various academic committees do have the power and responsibility to assess academic misconduct.

n Churchill has continued to write, speak and teach since his termination, and students have been able to access his views despite him not being a teacher.

Professor Churchill’s testimony was—as ever—eloquent. He emphasized that he filed a lawsuit as “a matter of principle to preserve the concept of academic freedom, which is to say that political powers cannot silence professors because they disagree with their beliefs.” (all quotes approximate) “And to obtain justice, restitution, restoration to the position that jury found I was illegally removed from.” Professor Churchill reasserted his trial testimony that when asked if he wanted money, he said no.

Regarding the inference that he would not be collegial, he noted that throughout the investigation he was commended by the committees for his collegiality. And that he has no reason as a faculty member to interact with the Regents or the Chancellor, those most likely to have animosity towards him. And that all his previous performance reviews have been excellent. Question: If they do retaliate, what will you do? I will stand up for my rights.

In cross examination, Pat O’Rourke was more aggressive with Churchill than in trial. O’Rourke noted that while Churchill said that he didn’t ask the jury for money, he had no objection to his attorney’s comments regarding monetary awards that would be fair. And that Churchill doesn’t need to be reinstated to continue to publish and work on books and do various other things to promote his views.

CU’s witnesses were Dean Gleason, Dean of College of Arts and Sciences; Chancellor DiStefano; and Richard Jessor, CU professor of psychology since 1951, the oldest serving professor. Their testimony was essentially that (a) various faculty committees found that Churchill committed academic misconduct (which was not clearly denied by the jury) and (b) if someone who committed academic misconduct is allowed to teach at a university the school will be damaged because (c) the school’s reputation for academic integrity will be impinged and the most promising faculty and students will not want to be associated with it. And the fact that Professor Perez, head of the Ethnic Studies Department, does not believe Professor Churchill committed academic misconduct means that she will not review his work with the appropriate amount of scrutiny.

David Lane cross examined all witnesses in his classic provocative style. Turning to the argument that Churchill’s reputation for academic misconduct would discourage promising faculty and students, he got each witness to admit that the University had been determined by a jury to be violators of the First Amendment of the Constitution of the United States of America (yes, using the whole phrase). And wouldn’t the reputation as First Amendment Violators discourage promising (defined as possibly controversial) faculty from coming to the school? And who in the courtroom had been proved to be illegal retaliators? And could any of the witnesses name any professor who had promised or threaten to leave CU if Churchill was reinstated? (No.)

Both parties will submit findings by end of day tomorrow, and Judge Naves will issue a ruling early next week.

Churchill’s Reply re Motion to Reinstate:

· There is no case law to support CU’s assertion that when only nominal damages are awarded, the plaintiff is precluded from additionally seeking the equitable remedy of reinstatement.

· Equity requires courts to take remedial action to make the plaintiff whole from the defendant’s wrongdoing, in this case, to give Churchill back his job.

· “[A]cademic discourse involving controversial issues engenders strong passions among all parties, however because this is precisely what the market place of ideas envisions, it is therefore essential that this Court keep the market place open for business through reinstatement.”

· CU’s speculation about what would happen if Churchill returned does not justify legal findings.

· CU continues to be in denial about the fact that a jury found they had acted illegally and they lost the case. The court has an obligation to remedy this misconduct.

CU’s Reply re Motion for Quasi-Judicial Immunity:

• Quasi-judicial immunity is not the same as 11^th Amendment immunity, which applies only to the states themselves. Quasi-judicial immunity is a matter of state law and protects individuals from suit if they are performing a judicial function.
• A pre-trial agreement between the parties allows CU to raise defenses on behalf of CU and the Board of Regents that would have been available to the Regents as individuals, opening the door to the defense of quasi-judicial immunity that would otherwise not be available to CU as an entity.
• Quasi-judicial immunity applies to both the $1 nominal damage award and the request for reinstatement because the key statute in the case Churchill relies on, Pulliam v. Allen, 466 U.S. 522 (1984), was amended in 1996. The amendment requires prospective relief in Constitutional violation cases be granted only if “a declaratory decree was violated or declaratory relief was unavailable.” Since Churchill never claimed CU violated a declaratory decree, he cannot now claim that. Churchill would have had to ask a district court to establish that no further declaratory relief was available, and has not done so.
• Quasi-judicial immunity exists because a) the type of proceeding the Regents had was investigative (examining evidence gathered by prior committees) and administrative (dismissal of employee); (b) elected officials (such as Governors acting as final reviewers of parole requests) can claim the immunity; (c) if freedom from political pressure was the requirement for judicial immunity, elected judges would be denied that immunity; (d) “quasi-judicial immunity protects all types of officials who perform judicial functions, not just appellate functions.”

The hearing for arguments on these motions is at 8:30 on July 1. The Replies are posted on the DU Corporate Governance site.

Plaintiff’s Response to Defendant’s Motion for Judgment as a Matter of Law:

• Motion must be denied as quasi-judicial immunity only applies to individuals sued in their individual capacities and not governmental defendants. In the earlier procedure of this case, the parties agreed to exchange the University of Colorado as a corporate entity as defendants in place of the Regents individually and in their official capacities. In doing so, CU waived 11^th Amendment immunity, the only immunity which would have applied.
• Even if quasi-judicial immunity is applied, it only goes to the $1.00 damage award and not to the reinstatement sought by plaintiff.
• Even if quasi-judicial immunity applied to entities, it would not apply in this case as the quasi-judicial entity would need to be truly independent and immune from political pressures in order to qualify, which the Regents were not (as per testimony).

Brief in Opposition to Motion for Reinstatement:

• The jury’s verdict precludes equitable relief since a) Churchill did not ask the Court to set aside the jury’s verdict of only $1.00 in damages; and b) That even though the pleadings and other court documents did seek every measure of damages, the jury’s award of only $1.00 in damages indicates that the jury found that there was no damage from the violation of his constitutional rights.
• If equitable relief is not precluded, then reinstatement is not the appropriate remedy because a) the litigation has irreparably damaged the relationship between the parties (citing in court and out of court statements by Churchill and Attorney Lane), and; b) reinstating Churchill will harm others in that Churchill will be in position to retaliate against faculty members who did not support him and will continue to make “bogus claims” that damage Native American studies.
• If equitable relief is granted it should only be reasonable front pay because a) Churchill made little effort to mitigate his damage by getting another position; b) the average work life of public employees is 58 years, and Churchill is already 61; c) Churchill is already drawing PERA benefits of $68,409 annually.

Both responses are available in the Churchill section of the DU Corporate Governance site.

The motion asserts that the Board of Regents, created under Article VIII of the Colorado Constitution, occupies a “unique position in Colorado’s governmental structure.” Since the Regents have constitutional power to “enact laws for the government of the University,” their actions in doing so have the same immunity from personal claims provided to other governmental actors. Judicial immunity is provided to judges, prosecutors and grand jurors on the basis that when such officials perform functions necessary to the judicial system, quasi-judicial immunity creates a bar to liability. This immunity prevents someone receiving an adverse judgment from going after the judge or jury.

The motion further asserts that immunity is not a product of governmental position, but of functioning in judicial capacity. Citing several Colorado and Tenth Circuit cases involving school district and university teacher terminations, CU notes that “where an official applies ‘preexisting legal standards or policy considerations to present or past facts presented to the governmental body, then one can say with reasonable certainty that the governmental body is acting in a quasi-judicial capacity.’” CU applies these rulings to the facts of Prof Churchill’s termination, emphasizing that a) the likelihood of litigation against the Regents in the event of a decision to fire someone is just the sort of retaliation that immunity is designed to prevent, and b) that the Regents provided Prof Churchill with enough procedural protections and due process (through the many series of hearings and committees) to qualify for quasi-judicial immunity.

“Prof Churchill will undoubtedly claim that the safeguards [of due process] were insufficient because the jury returned a verdict in his favor, but the jury’s verdict is not the test by which a court measures judicial immunity. Were it otherwise, a quasi-judicial immunity would depend upon the outcome of the lawsuit, but the courts have been clear that the question is whether there are safeguards in the judicial framework designed to control unlawful conduct.”

Professor Churchill’s response must be filed within twenty days; we will report further at that time.

Primary materials for this case may be found at the DU Corporate Governance website.